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USDOL/OALJ STAA Whistleblower Digest DIVISION IV -- BURDEN OF PROOF AND PRODUCTION SUBDIVISION A -- PRIMA FACIE CASE [Last updated September 8, 2008]
IV. Burden of proof and production
[STAA Digest IV A 1]
See Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), for a general overview of the standards and burdens for claims arising under Section 405 of the STAA.
[STAA Whistleblower Digest IV A] FAILURE TO ESTABLISH A PRIMA FACIE CASE AT HEARING
In Smith v. Sysco Foods of Baltimore, ARB No. 03-134, ALJ No. 2003-STA-32 (ARB Oct. 19, 2004), the Complainant put on a case that was based on the Respondent's policy of assessing its employees penalty points for coming to work late. The Respondent then moved to dismiss the complaint because the Complainant had not presented any evidence that he had engaged in protected activity and therefore had not presented a prima facie case of discrimination. The ALJ granted the motion because he found that the Complainant provided no evidence that he either filed a complaint related to vehicle safety or that he refused to operate a vehicle. The ARB affirmed, noting that although the Complainant was pro se, "the burden of first establishing, and ultimately proving, the necessary elements of a whistleblower claim is no less for pro se litigants than it is for litigants represented by counsel."
[STAA Digest IV A 1] In Luckie v. United Parcel Service, Inc., ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the erred when he described the legal burden of proof in a STAA whistleblower cases in terms of establishing a prima facie case, and then briefly analyzed each element of the claim, but was not clear whether he was using the ultimate burden of proof requirements to prevail or whether he was applying the burden of persuasion requirements to establish a prima facie case. The ARB observed that the Secretary of Labor explained in Carroll v. Bechtel Power Corp., No. 1991-ERA-46, slip op. at 11 (Sec'y Feb. 15, 1995), that "[o]nce the respondent has presented his rebuttal evidence, the answer to the question whether the plaintiff presented a prima facie case is no longer particularly useful."
[STAA Whistleblower Digest IV A 1]
In Leach v. Basin Western Inc., ARB No.02 089, ALJ No. 2002 STA 5 (ARB July 31, 2003), the ARB recommended Shannon v. Consol. Freightways, ARB No. 98 051, ALJ No. 1996 STA 15, slip op. at 5 7 (ARB Apr. 15, 1998), aff'd 181 F.3d 103 (6th Cir. May 14, 1999) (table), for a "concise discussion of the principles relevant to evaluation of conflicting evidence pursuant to the McDonnell Douglas paradigm and the dual/mixed motive doctrine in a STAA case."
[STAA Digest IV A 1]
In Pike v. Public Storage Companies, Inc., ARB No. 99-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999), the ARB adopted the ALJ's recommended decision, but noted in regard to the ALJ's analysis of a prima facie case: "In a case fully tried on the merits, ... It is not particularly useful to analyze whether the complainant established a prima facie case. ... Rather, the relevant inquiry is whether [the complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." (citation omitted). IV.A.1. Overview of burden of proof in STAA proceedings From Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992): Under the burdens of proof in STAA proceedings, complainant must show that he engaged in protected activity, that he was subjected to adverse action, and that Respondent was aware of the protected activity when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. An employee is protected if he "has filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). See Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 18, 1987), slip op. at 3-4 (both internal and external safety complaints protected). Cf. Bivens v. Louisiana Power and Light, 89-ERA-30 (Sec'y June 4, 1991), slip op. at 4-5 (citing cases) (internal safety complaints to employer protected under environmental whistleblower laws). Section 2305(b) of the STAA also prohibits discriminatory treatment of employees in either of two "work refusal" circumstances. First, an employee may not be disciplined for refusing to operate a vehicle "when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health . . . ." ("When" clause.) Second, discipline is prohibited for refusing to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." ("Because" clause.) This second ground for refusal carries the further requirement that the unsafe condition causing the employee's apprehension of injury must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Finally, section 2305(b) stipulates that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."
[STAA Digest IV A 1]
In Scott v. Roadway Express, Inc., 1998-STA-8 (ALJ Nov. 6, 1998), the ALJ, viewing the evidence in a light most favorable to Complainant and drawing all reasonable factual inferences in Complainant's favor, granted Respondent's "motion for a directed verdict" on Complainant's section 405A complaint upon completion of Complainant's case, finding that Complainant had not established a causal connection between his protected activity and his discipline or discharge. The ALJ noted that current FRCP 50, now provides for a "Judgment as a Matter of Law" rather than a "directed verdict," but that the change was not intended to change the standards under which "directed verdicts" could be granted. The ALJ also noted that the use of "directed verdicts" appears to have the imprimatur of the Sixth Circuit in STAA cases, citing Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). The ALJ, however, refused a similar motion for a directed verdict at the close of Complainant's evidentiary presentation on a section 405B,"refusal to drive" complaint, finding that Complainant had established a prima facie case. He also denied a motion for a directed verdict on the issue of whether the Secretary of Labor should defer to the outcome of an action under a collective bargaining agreement.
[STAA Digest IV A]
Where the case is fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. If he or she did not, it matters not at all whether he or she presented a prima facie case. If he or she did, whether a prima facie case wsa presented is irrelevant. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998).
[STAA Digest IV A]
In Clean Harbors Environmental Services, Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the First Circuit recited the generally accepted statement of burdens of proof and production in an STAA whisteblower proceedings:
1998 WL 293060 *9.
[STAA Digest IV A]
In Byrd v. Consolidated Motor Freight, 97-STA-9 @ 4-5 (ARB May 5, 1998), the ARB summarized the burdens of proof and production in STAA whistleblower cases:
IV A 1 Source of analysis in STAA cases Cases arising under the employee protection provision of the Surface Transportation Assistance Act are reviewed by the Secretary of Labor in accordance with the same prescription for allocating burdens of proof and production or going forward with the evidence as applied to analogous employee protection laws under 29 C.F.R. Part 24. See, e.g., Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and NLRB v. Transportation Management Corp., 103 S. Ct. 2469 (1983). Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984) (first STAA decision by the Secretary). IV.A.1. Source of test The burdens of proof and production for use in proceedings under the employee protection provision of the STAA were derived from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). See Roadway Express v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), slip op. at 4 n.3. IV.A.1. Elements of prima facie case Under the burden of proof in proceedings under the STAA employee protection provision, in order to establish a prima facie case, the complainant must show by a preponderance of the evidence that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-9 (case under analogous provision of ERA). The complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 2. IV.A.1. Elements of prima facie case under the STAA Adapting the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) to the STAA, the plaintiff has the initial burden of establishing a prima facie case of retaliatory discharge. Once a prima facie case is established, one which raises an inference that protected activity was the likely reason for the adverse action, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination. To establish a prima facie case of retaliatory discharge, the complainant must prove:
Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). IV A 1 Burden of articulation for prima facie case Corroborating evidence is not necessary to establish a prima facie case. In order to present a prima facie case the complainant need only to present evidence sufficient to prevail if not contradicted and overcome by other evidence. Ass't Sec'y and Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995), slip op. at 3. Thus, a complainant's testimony that he was forced to falsify logs by itself is sufficient to establish a prima facie case, i.e., the complainant would prevail on the point if respondent does not introduce evidence rebutting and overcoming that allegation. Toland v. Burlington Motor Carriers, Inc., 93- STA-35 (Sec'y Feb. 27, 1995). IV.A.1. Overview of burden of proof in STAA proceedings Section 405 of the STAA was enacted to encourage employees in the transportation industry to report noncompliance with applicable safety regulations governing commercial motor vehicles and to protect these "whistle-blowers" by forbidding the employer to discharge, or to take other adverse employment action, in retaliation for their safety complaints. Brock v. Roadway Express, Inc., 481 U.S. 250 , 258, 262 (1987); 49 U.S.C. app. § 2305(a), (b). The STAA does not, however, prohibit an employer from discharging an whistleblower where the discharge is not motivated by retaliatory animus. See, e.g., Newkirk v. Cypress Trucking Lines, Inc., 88-STA-17 (Sec'y Feb. 13, 1989), slip op. at 9; cf. Lockert v. United States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989). To prevail under the STAA, the employee must establish that the employer discharged him because of the protected whistleblowing activity. Newkirk, slip op. at 8-9. More specifically, to establish the initial prima facie case, a complainant must present evidence sufficient to raise an inference of causation. Where he does so, and the employer proffers a legitimate, nondiscriminatory reason for the discharge, then the complainant must show either that his protected conduct more likely motivated the employer or that the employer's proffered explanation is incredible. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23,1992). IV.A.1. Pro se complainant's burden of proof While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991). IV.A.1. Elements of prima facie case To establish a prima facie case of unlawful discrimination under the STAA, the complainant has the initial burden to show that 1) he or she engaged in protected activity under the STAA, 2) he or she was the subject of adverse employment action, and 3) his or her employer was aware of the protected activity when it took the adverse action. The respondent may then present a legitimate, non-discriminatory reason for the adverse action. The complainant may ultimately prevail by successfully rebutting the credibility of the respondent's proffered explanation for the adverse action. In Sickau v. Bulkmatic Transport Co., 94-STA- 26 (ALJ June 22, 1994), the ALJ found the complainant's testimony to be more credible than the respondent's, and that the complainant had satisfied the elements of a prima facie case. The parties did not dispute that the complainant had been subjected to an adverse employment action, but rather, the reason behind the complainant's refusal to make the run. If it was determined that the complainant's reason was more compelling, then his refusal to take the assignment would constitute a protected activity. The respondent, however, could prevail only if the ALJ determined that the respondent's proffered reasons behind the complainant's refusal were based on laziness or misconduct. The ALJ found that the weight of the evidence submitted supported the complainant's version of events. Thus, the complainant had satisfied the elements of prima facie case and also successfully rebutted the respondent's alternative explanations. The Secretary adopted the ALJ's findings and ordered the respondent to pay back pay plus interest and attorney fees to the complainant. Sickau v. Bulkmatic Transport Co., 94-STA-26 (Sec'y Oct. 21, 1994). IV A 1 General statement of burdens of proof & production To prevail on a STAA complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under section 405. A complainant initially must show that it was likely that the adverse action, e.g., discharge, was motivated by a protected complaint or work refusal. The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then must prove that the proffered reason was not the true reason for the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). In the event that a complainant demonstrates that the respondent took adverse action in part because he engaged in a protected complaint or refusal, the burden shifts to the respondent to demonstrate that the complainant would have been disciplined even if he had not engaged in the protected activity. Cf. Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1289-90 (9th Cir. 1991); Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984). In such cases, a respondent "bears the risk that 'the influence of legal and illegal motives cannot be separated . . . .'" Mackowiak, 735 F.2d at 1164, quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983). STAA section 405(a) prohibits an employee's discharge because he has filed a complaint "relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). Internal complaints, e.g., to an employer, are protected. Protection is not dependent on actually proving a violation. Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992). STAA section 405(b) provides that "[n]o person shall discharge . . . an employee . . . for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." 49 U.S.C. app. § 2305(b). Protection under this criterion also requires that "[t]he unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition" and that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition." Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992); Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992). IV A 1 Ultimate burden on complainant The ultimate burden of establishing that the respondent violated the employee protection provision of the STAA is on the complainant. Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994) (citing Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993). IV.A.1. Burden of proof and production in STAA proceedings The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar, Inc., 86- STA-5 (Sec'y July 9, 1986), slip op. at 10-11. These burdens derive from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Health City School District Board of Education v. Doyle, 429 U.S. 274 (1977). See Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). In order to establish a prima facie case, a complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that his employer was aware of his protected activity when it took the adverse action. After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255. The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action. Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on other ground sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). IV. A. 1. Elements of a prima facie case In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the court reiterated its holding in Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987), that the requirements for an employee to make out a prima facie case of a section 405 violation involve proof of three elements: (1) that the employee's employment engages him or her in protected activity; (2) that his or her employer took adverse employment action against him or her; and (3) that a "causal link" exists between his or her protected activity and the employer's adverse action. Once an employee establishes a prima facie case, the court makes its determination of liability by adapting the familiar Title VII McDonnell Douglas burden-shifting rules to the STAA. At this point, "the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination." IV.A.1. Prima facie case in STAA In a case arising from section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305, in order to establish a prima facie case, a complainant must show:
Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991). IV.A.1. General statement of burdens To prevail on a STAA whistleblower complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under Section 405. A complainant initially must show that it was likely that the adverse action was motivated by a protected activity. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987); Guttman v. Passaic Valley Sewerage Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992), slip op. at 9, aff'd sub nom., Passaic Valley Sewerage Com'rs v. Dept. of Labor, 992 F.2d 474 (3d. Cir. 1993). The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then must prove that the proffered reason was not the true reason for the adverse action. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 416 (1993). Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993). IV A 1 Approval of Secretary's allocation of burdens In Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987), the Eleventh Circuit indicated that the Secretary has correctly articulated the burdens of proof and production set forth by the Supreme Court in wrongful discharge cases. See Nix v. Nehi-RC Bottling Co., 84-STA-1 (Sec'y July 13, 1984) (relying on Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1982); Dartey v. Zack Co. of Chicago, Inc., 82-ERA-2 (Sec'y Apr. 25, 1983) (relying on Burdine, supra and Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). IV.A.1. Elements of prima facie case Under the burden of proof in proceedings under the STAA employee protection provision, in order to establish a prima facie case, the complainant must show by a preponderance of the evidence that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-9 (case under analogous provision of ERA). The complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 2. IV. A. 1. Elements of a prima facie case In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the court reiterated its holding in Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987), that the requirements for an employee to make out a prima facie case of a section 405 violation involve proof of three elements: (1) that the employee's employment engages him or her in protected activity; (2) that his or her employer took adverse employment action against him or her; and (3) that a "causal link" exists between his or her protected activity and the employer's adverse action. Once an employee establishes a prima facie case, the court makes its determination of liability by adapting the familiar Title VII McDonnell Douglas burden-shifting rules to the STAA. At this point, "the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination."
[STAA Whistleblower Digest IV A 2 a ] In Williams v. Capitol Entertainment Services, Inc., ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB remanded the case for additional proceedings where the ALJ had not addressed whether the Complainant's complaints concerning the lack of, and subsequently the improper use of, "defect logs" were protected activities under STAA. The ARB found that the "ALJ's evaluation of causation is not complete since the effect of this possible protected activity was not assessed. To properly evaluate whether protected activity contributed to CES's decision to terminate Williams's employment, all instances of protected activity must be thoroughly assessed."
[STAA Whistleblower Digest IV A 2 a ]
An employer's discharge decision must be motivated by retaliation to be actionable, even if the employer's decision is based on a mistaken conclusion about the circumstances. Thus, evidence presented by Complainant that he suffered a hearing impairment and therefore may not have heard commands made by supervisors was not relevant. Clement v. Milwaukee Transport Services, Inc., ARB No. 02 025, ALJ No. 2001 STA 6 (ARB Aug. 29, 2003).
[STAA Whistleblower Digest IV A 2 a]
In Bettner v. Daymark, Inc., ARB No. 01 088, ALJ No. 2000 STA 41 (ARB Oct. 31, 2003), the ALJ had found that Respondent's failure to immediately provide full health benefits when the Complainant was reinstated pursuant to the settlement of a prior whistleblower complaint was a de minimus violation (because it related the resolution of Complainant's prior complaint) and that it required no further remedy. The ARB agreed that a violation of a settlement agreement may constitute a new and separate STAA violation, but only where all the elements of a STAA whistleblower complaint are established. In the instant case, Respondent presented credible evidence and testimony to the effect that the delay resulted from Complainant's refusal to complete an enrollment form. Thus, the element of causation was not established. There was no evidence that the delay was motivated by Complainant's protected activity (filing the previous complaint), and therefore no new STAA violation.
[STAA Digest IV A 2 a]
Where the Complainant could have worked in the Respondent's warehouse until the truck he complained about was repaired and then driven it, or could have taken a different truck, but instead just left and never asked to return to work, the ARB agreed with the ALJ that the complaint was deficient as a matter of law. The Complainant offered no reason for walking off the job rather than waiting for the repairs to be made or driving a different truck. The ARB's decision implies that it was proper for the ALJ not to determine whether the defects the Complainant identified constituted violations of safety laws or supported a reasonable apprehension of serious injury, because the case could be resolved solely on the Complainant's failure to establish that the Respondent retaliated against him for refusing to drive the truck. Prior v. Hughes Transport, Inc., ARB No. 04-044, ALJ No. 2004-STA-1 (ARB Apr. 29, 2005).
[STAA Whistleblower Digest IV A 2 a]
In Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02 122, ALJ No. 2001 STA 33 (ARB Oct. 31, 2003), Respondent supplied commercial trucking services for freshly harvested tomatoes during a three month harvest season. Respondent's 12 hour shift schedule on successive work days did not violate applicable federal and state law, which provided exceptions for the type of agricultural transport operations at issue in the case. Complainant was aware of the 12 hour shift, but had difficulty adjusting to the night schedule he had been assigned (6:00 pm to 6:00 am) because of fatigue. Respondent terminated Complainant's employment after seven scheduled nights because it had become clear that Complainant was not going to be able "to get the job done" for Respondent. The ARB found that the evidence established that Complainant "failed to demonstrate that he was prepared to take on the rigors of performing, on a continuing basis, the 12 hour overnight shifts required by the Y job. We therefore conclude that [Complainant] has failed to establish by a preponderance of the evidence that [Respondent] terminated his employment in retaliation for engaging in protected activity." Slip op. at 10 (citations omitted).
[STAA Whistleblower Digest IV A 2 a]
In Coppola v. Quality Associates, Inc., ARB No. 02 114, ALJ No. 2002 STA 13 (ARB Aug. 29, 2003), the ALJ found that the evidence was sufficient to raise an inference of a causal nexus between the protected activity and the termination decision. The ARB observed that this ruling left it unclear whether Complainant carried his ultimate burden to establish B by a preponderance of the relevant evidence B that Complainant's protected activity played a role in the termination decision. The ARB, however, found that any error in the ALJ's analysis was harmless because of his finding, which the ARB affirmed, that Respondent would have fired Complainant because of speeding and performance problems even in the absence of his protected activity.
[STAA Whistleblower Digest IV A 2 a] Where the ALJ found that it was undisputed that the decision to terminate Complainant's employment occurred prior to the alleged protected activity, the ALJ recommended dismissal of the complaint because the essential element of a prima facie case B causal link or nexus between the protected activity and the termination could not be established. Complainant did not address this finding before the ARB, and accordingly, the ARB adopted the ALJ's Decision and Order. Bushway v. Yellow Freight, Inc., ARB No. 01 018, ALJ No. 2000 STA 52 (ARB Dec. 13, 2002). Evidence of wholly unprotected conduct immediately preceding an adverse employment action may militate against an inference of causation. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995) (citing Monteer v. Milky Way Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990), slip op. at 4). To the same effect: Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995) (Complainant acted inappropriately and contrary to established rules, leading to discharge). IV.A.2.b.i. STAA; direct evidence not needed to establish causation In a STAA, 49 U.S.C. app. § 2305(b) case, direct evidence is not required for a showing of causation. The presence or absence of establishing motive is provable by circumstantial evidence, even in the event that witnesses testify that they did not perceive such a motive. Clay v. Castle Coal & Oil Co., Inc., 90-STA-37 (Sec'y Nov. 12, 1991). IV.A.2.b.1. Burden of establishing causation In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary held that the Complainant's initial burden in establishing a prima facie case is not onerous. The causal connection component may be established by showing that the employer was aware of the protected conduct and that the adverse personnel action followed closely thereafter. Direct evidence is not required for a finding of causation.
[STAA Digest IV A 2 b ii]
In Simon v. Sancken Trucking Co., ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), it was undisputed on appeal that the Complainant engaged in protected activity when he complained to the Employer and the FMSCA about drivers’ failure to complete time-on-duty logs where deliveries were being made more than 100 miles from the depot, and that the Employer was aware of such activity. The Employer, however, contested the ALJ’s finding that the Complainant was reassigned and then fired because of such activity. The ARB affirmed the ALJ’s finding given the close temporal proximity between the negative results of a FMSCA audit precipitated by the protected activity and the adverse action, coupled with the ALJ’s findings of pretext, which were supported by substantial evidence. The reassignment had been made on a "take it or leave it" basis on the same day of receipt of the adverse report (and knowing that this would cause child care problems for the Complainant), and there were contradictions in the reasons the Employer gave for its actions relative to the subsequent firing. In regard to value of proximity in supporting the Complainant’s case, the ARB wrote:
While not ineluctable, the circumstances of a given case may support a fact-finder's conclusion that the temporal proximity between protected activity and adverse action establishes that the adverse action was motivated by the protected activity. Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ Nos. 1996-ERA-034, 036, slip op. at 6 (ARB Mar. 30, 2001). As the United States Supreme Court stated in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000), "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation" for an adverse action. The ultimate burden of persuasion that an employer intentionally discriminated because of a complainant's protected activity remains at all times with the complainant, Martin v. United Parcel Ser., ARB No. 05-040, ALJ No. 2003-STA-009, slip op. at 9 (ARB May 31, 2007), but proof that an employer's "explanation is unworthy of credence" . . . "can be quite persuasive." Reeves, slip op. at 147.
USDOL/OALJ Reporter at 6-7.
IV.A.2.b.ii. Proximity raises inference Close proximity between the protected activity and the adverse action may raise the inference that the protected activity was the likely reason for the adverse action. Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993) (citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987)).
[STAA Whistleblower Digest IV A 2 b ii] In Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007), PDF | HTM the ARB held that intervening events negated any inference of causal relationship raised by temporal proximity between the Complainant's protected activity and his termination. Specifically, on his last day of work, the Complainant dropped two loads of drywall while unloading a truck at a job site, and then blew out a tire because he backed up his truck without using a spotter in violation of the Respondent's safety rules.
[STAA Whistleblower Digest IV A 2 b ii]
In Anderson v. Jaro Transportation Services, ARB No. 05-011, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the ARB held that a six month interval between the Complainant's protected activity and his termination from employment was not too long a time period from which to infer that the Respondent was retaliating. IN the instant case, after making the protected communication the Complainant failed to make timely deliveries and parked his tractor-trailer off route. The ARB found that these intervening events reasonably could have caused the Respondent to reprimand and terminate the Complainant's employment, and therefore "a logical reason to infer a causal relationship between the protected activity and the adverse action no longer exists." USDOL/OALJ Reporter at 7 (footnote omitted).
[STAA Whistleblower Digest IV A 2 b ii]
In Simpkins v. Rondy Co., Inc., ARB No. 02 097, ALJ No. 2001 STA 59 (ARB Sept. 24, 2003), the ARB affirmed the ALJ's finding that Complainant had not established a causal link between the protected activity and the adverse employment action where Complainant's protected activity was remote to warning letters and the ultimate termination, whereas the warning letters and termination closely followed incidents that Respondent believed were a deviation from company policy. There was also a lack of evidence indicating that Respondent's management held hostility against Complainant for STAA protected activity.
[STAA Whistleblower Digest IV A 2 b ii]
In Poll v. R. J. Vyhnalek Trucking, ARB No. 99 110, ALJ No. 1996 STA 35 (ARB June 28, 2002), the ALJ found that the Complainant failed to establish the causation element of a prima facie case because the Respondent alleged that it had discharged the Complainant because of an accident, which followed the protected complaint by about two weeks and preceded the discharge by a matter of days. The ARB, however, citing authority relating to the raising of an inference of causation based on temporal proximity, declined to adopt the ALJ's finding that a prima facie case had not been established. Rather, the ARB found "the accident somewhat less compelling in light of case precedent and the three week period at issue here. The accident simply does not represent the confluence of compelling evidence to the contrary cited by courts that have rejected the inference." The ARB, however, went on the consider the case under the pretext analysis and adopted the ALJ's alternative finding that the Complainant had failed to prove that Respondent's articulated nondiscriminatory reason for discharging the Complainant was pretext. In other words, although the evidence of an intervening event the accident was insufficient to prevent the invocation of the inference of causation under the prima facie analysis, once the Respondent articulated a nondiscriminatory reason for the adverse employment action, the prima facie analysis dropped out of the case, and it was Complainant's burden to prove pretext. Mere evidence of proximate timing was found inadequate to sustain Complainant's ultimate burden of proof by a preponderance of the evidence, given proof of the intervening accident and credible testimony of Respondent's president as to motivation for the discharge. To the same effect: Gale v. Ocean Imaging, ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002). IV A 2 b ii CAUSAL LINK; SIX WEEK LAPSE DOES NOT NEGATE INFERENCE OF CAUSATION In Williams v. Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11, 1995), the ALJ concluded that the temporal proximity of the Complainant's discharge - - six weeks -- was too distant to raise an inference of causation (although he did find a prima facie case established generally). The Secretary rejected this conclusion, noting that in prior decisions, he had found that even a ten-month lapse may be sufficient to raise an inference of causation. A six week lapse, the Secretary held, is not so distant as to negate the inference of a causal link between the protected activity and the adverse employment action. IV.A.2.b.ii. Six day interval between protected activity and adverse action meets criterion to show causation. In Newkirk v. Cypress Trucking Lines, 88-STA-17 (Sec'y Feb. 13, 1989), Complainant was employed by Respondent as a truck driver. Respondent told Complainant to pick up a trailer that had already been loaded and transported locally a distance of several miles. After pulling the trailer a distance of about 100 yards, Complainant noted that the trailer was very heavy. Upon weighing the load it was evident that the load had shifted forward and could no longer be hauled safely. Complainant refused to haul the shifted load. When the president of the Respondent corporation discovered that the load had not been delivered, he reportedly said either "fire [the Complainant]" or "get rid of him." Six days later, Complainant was terminated. In the intervening six days, Complainant was not permitted to drive the load that had shifted after the weight had been redistributed and was not permitted to haul other loads that had previously been assigned to him. The Secretary disagreed with the ALJ's finding that Complainant failed to establish a prima facie case and held that "the six-day interval between September 25 and October 1 coupled with [Respondent's] highly incriminating utterance and his refusal to assign [Complainant] to make several previously scheduled trips during that period" was sufficient to raise an inference that Complainant's protected activity and Respondent's adverse action were causally related. However, the Secretary adopted the ALJ's findings that after Respondent's initial reaction, an investigation was conducted which absolved the Complainant of any wrong doing and by the time Complainant was terminated, the load-shift incident ceased to be a motivation for any adverse employment action. Rather other problems with Complainant motivated Respondent's adverse action. IV.A.2.b.ii. Only inference of causation needed for prima facie case; proximate timing In establishing a prima facie case a complainant need only raise the inference that his engaging in protected activities caused the adverse action. The proximity in time between protected conduct and adverse action alone may be sufficient to establish the element of causation for purposes of a prima facie case. Thus, where Complainant was discharged within a week of raising safety complaints about a truck, the Secretary found that Complainant raised the inference of causation. Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993). IV.A.2.b.ii. Proximity of protected conduct and adverse action Where the record indicated that the complainant was discharged in close proximity both to being overheard complaining on his CB radio about being overworked and to complainant's threat to fight his supervisor (which under the respondent's version of the facts occurred prior to the discharge), it was error for the ALJ to conclude that rule that the proximate timing of the adverse action to the protected activity raises an inference of causation would not be invoked because, in the ALJ's view, the "employer's position is just as consistent with the timing of complainant's termination as is complainant's [position]." The proximity in time between protected conduct and adverse action alone is sufficient to establish the element of causation for purposes of establishing a prima facie case. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989) (temporal proximity is sufficient as a matter of law to establish the final element in a prima facie case of retaliatory discharge); accord Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984). Although the ALJ cited Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) in support of his finding, the Secretary noted that she had distinguished that case because the court's ruling -- that the proximity of the safety complaints to the adverse action was insufficient to establish the prima facie case -- was based on the fact that the employer encouraged safety complaints, and here there was no evidence of such encouragement. See Ertel v. Giroux Bros. Transportation, Inc., 88-STA-4 (Sec'y Feb. 16, 1989), slip op. at 25 n.15. Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992). IV.A.2.b.ii. Failure of record to support raising of inference of causation based on temporal proximity of adverse action to protected activity When considering whether a prima facie case has been established in an STAA complaint, the proximity in time between protected activity and adverse employment action may give rise to an inference of a causal connection. Temporal proximity alone, however, did not support such an inference in the face of compelling evidence that the employer encouraged safety complaints, and where complainant had been discharged on the stated ground of improper log entries after all employees had been warned about making improper log entries, and the complainant admitted knowing former employees who had been fired or suspended for log problems. See B. Schlei & P. Grossman, Employment Discrimination Law, Ch. 15 (2d ed. 1983), at 558- 59 ("Proof that similarly situated nonprotestors were disciplined just as harshly for the same infraction suggests nonretaliation."). Cf. DeCinto v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) (causal relationship show in part by evidence that plaintiff's fellow employees were not disciplined for engaging in identical, allegedly improper behavior). In addition, the complainant did not present any evidence that the warnings about log entries began shortly after he began to make safety complaints. Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). IV.A.2.b.ii. Proximate timing of adverse action To establish a prima facie case, the inference must be raised that the employee's protected activities motivated the adverse action. This inference is raised when the discharge immediately follows the protected activity. Bergeron v. Aulenback Transportation, Inc., 91-STA-38 (Sec'y June 4, 1992), slip op. at 3; Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993). IV. A. 2. b. ii. Proximate timing of adverse action In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Complainant was discharged several days after engaging in protected activity. This was sufficient to raise the inference of retaliation. IV.A.2.b.ii. Discharge same day engaged in protected activity Where Complainant was discharged the same day he raised safety complaints, the Secretary found that Complainant raised the inference that he was fired because he engaged in protected activity. Toland v. Werner Enterprises, 93-STA-22 (Sec'y Nov. 16, 1993). IV.A.2.b.ii. Timing too remote In Bolden v. Distron, Inc., 87-STA-28 (ALJ Mar. 21, 1988), aff'd, (Sec'y June 3, 1988), the ALJ found that the Complainant had failed to come forward with sufficient proof to raise the inference that participation in protected activity was the reason for the adverse action. Specifically, the Complainant's complaint to the DOT predated the discharge by at least fifteen months, and other complaints were even more distant in time. There was no evidence that the Respondent knew of the protected activities except for one of the more distant contacts, and the ALJ found this contact to be too remote to be a reasonable cause of the termination.
4 a 2 b 2 Where the Complainant made safety complaints in the late summer, in September he wrote a letter concerning safety to Respondent's headquarters, and two months later, the Complainant received two disciplinary warning notices and was laid off, the temporal proximity between the protected activities and the adverse actions raised the inference of causation. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995). IV.A.2.b.ii. Proximate timing/inference of causation A complainant suffered adverse employment action in the form of a discharge within five weeks of giving testimony in a co-worker's grievance proceeding relating to a safety violation. The proximate timing of the protected activity vis-a-vis the adverse action tends to support an inference of causation. Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), slip op. at 25 and n.14. The inference was supported by the complainant's supervisor's threat of discharge if the complainant testified. Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21 1989), aff'd in part and rev'd in part both on other grounds sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). IV. A. 2. b. ii. Proximate timing of adverse action In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Complainant was discharged several days after engaging in protected activity. This was sufficient to raise the inference of retaliation. IV.A.2.b.iii. Showing that respondent's reason for adverse action was baseless The complainant, who was purportedly discharged for falsification of driving logs, cannot establish the causation element of a prima facie case of retaliatory discharge for safety complaints under the STAA simply by asserting that his logs were accurate. In order to give rise to an inference sufficient to make out a prima facie case, the complainant would have had to prove that his logs were accurate. Hence, where the record reasonably supported the Secretary's conclusion that there was insufficient evidence that the logs were accurate, the Secretary's decision that complainant failed to establish a prima facie case was affirmed. Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) (noting as well that it is the respondent's perception of the justification for the firing that is the relevant inquiry). IV.A.2.b.iv. Pattern of retaliation The fact that another driver who voiced safety complaints similar to those voiced by complainant was terminated two months after the meeting in which the complaints were voiced did not support complainant's prima facie STAA case in regard to causation where there was no evidence that the termination of the co-worker was related to his safety complaints. In addition, the Secretary could have relied on the fact that the complainant failed to show that any driver who complained about truck problems were subjected to retaliation other than himself and the one aforementioned driver. See 3 A. Larson & L. Larson, Employment Discrimination 87.31 (1986) ("The employer's position is also bolstered by evidence that, although other employees had make similar protests ..., there was no pattern of retaliation against such employees."). Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). IV A 2 b iv Continuous nature of Respondent's actions over time can support inference of causal link In Clifton v. United Parcel Service, 94-STA-16 (Sec'y May 9, 1995), the Complainant was discharged for taking an unauthorized break approximately one year after his safety related complaints prompted a state fine and the Complainant's telephone call to the Respondent's insurer about the safety condition. The ALJ concluded that there was no causal link between the discharge and the protected activity. The Secretary disagreed, noting that the inference of a causal link portion of a prima facie case may be established by temporal proximity between a discharge and the protected activity. The Secretary noted that the Complainant had been discharged three times within one year of the protected activity, beginning almost immediately after the state inspection and fine. Two prior discharges were reversed under internal grievance procedures. The Secretary concluded that the continuous nature of the Respondent's actions supported an inference of a causal link. IV.A.2.b.iv. Coercion and harassment of other drivers In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993), the Secretary noted with approval the ALJ's discussion of evidence of dispatcher coercion and harassment directed at drivers (in addition to Complainant) who attempted to comply with DOT fatigue and hours limitations, as evidence supporting a finding of animus.
[STAA Whistleblower Digest IV A 2 c]
In Davis v. Chem Canada Logistics, Inc., ARB No. 08-010, ALJ No. 2006-STA-47 (ARB July 24, 2008), the ARB found that substantial evidence supported the ALJ's finding that the Respondent did not know about deficiencies recorded in the Complainant's log book prior to making the decision to terminate the Complainant because the Complainant had been terminated en route and therefore the Respondent could not have seen the log book. The ARB also affirmed the ALJ's finding that the Complainant's testimony regarding verbal reports of safety defects was not credible. The ARB noted that the Complainant had not challenged the ALJ's finding on appeal, having not responded to the Board's notice of a right to file a brief.
[STAA Digest IV A 2 c]
In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the Respondent's Human Resources director explained that she had discharged the Complainant because of, among other reasons, his excessive complaints about his equipment. The ARB found that substantial evidence supported the ALJ's finding that this ground for discharge was direct evidence that protected activity was a motivating factor in the decision to discharge the Complainant. The Respondent argued that the HR director was referring to equipment complaints that had been resolved, but the ARB rejected this argument because the HR director had not made this distinction when testifying.
IV.A.2.c. Responsible official
rescinds discriminatory act of
unauthorized employee; intent
to discriminate cannot be
imputed to employer In Bates v. Kasbar, Inc., 85-STA-11 (ALJ Mar. 7, 1986), adopted (Sec'y May 29, 1986), the ALJ held that if an employer by subsequent action of responsible officials ratifies a discriminatory act of unauthorized employees taken "in the heat of passion", a discriminatory intent may be found. Where, however, at the first available opportunity, an employer rescinds, overrules or negates the actions of an unauthorized employee which may have been discriminatory, an intent of discrimination may usually not be imputed to the employer.
[STAA Digest IV A 2 c]
In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), Complainant had registered internal complaints to Respondent protesting its sick leave policy, once six months before his discharge, and once eight days before his discharge. The ARB concluded that although the proximity between the second complaint and discharge entitled Complainant to an inference of causation, the preponderance of the evidence established that Respondent had ample reason to discharge Complainant for his poor work record, and therefore Complainant failed to establish that Respondent fired him for making protected safety complaints. See also Schulman v. Clean Harbors Environmental Services, Inc., ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999) (temporal proximity insufficient to satisfy Complainant's burden of proof by preponderance of the evidence, particularly in light of Respondent's presentation of evidence that the reason for termination from employment was insubordination).
[STAA Digest IV A 2 c]
In Clean Harbors Environmental Services, Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the court declined to disturb the agency's findings that Complainant was fired, at least in part based on protected activity, even though Respondent claimed that Complainant was fired because of customer complaints. The court noted that Respondent did chose to rely only on the testimony of its customer service manager, and observed that "[a] company may reasonably choose not to impose on its customers to appear as witnesses at trial about complaints they have made, but it does so at its own risk where the customer complaints may give the appearance of being based on the employee's refusal to violate the law." 1998 WL 293060 *11. The court noted Respondent's argument that it was not logical for it to do what Complainant claimed it did. The court, however, observed that a failure to do what is ultimately in the company's interest (avoidance of a lawsuit for retaliatory discharge) may be explained by a divergence of objectives between a corporation and its employees, who might perceive the interest as satisfaction of a complaining customer.
[STAA Digest IV A 2 c]
In Goggin v. Administrative Board, No. 97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below 1996-STA-25), the Sixth Circuit concurred with the ARB's observation that Respondent's evidence that Complainant's attitude had been a problem on the job was not sufficient to overcome the inference of a causal connection between Complainant's protected activity and his discharge because of the temporal proximity between the two, where evidence indicated that Respondent, prior to the protected activity was seeking to "salvage the employee". IV A 2 c Failure to establish inference The ALJ issued a Recommended Decision and Order to dismiss the complaint, and the Secretary agreed and so ordered. The Secretary noted, however, that the ALJ's decision did not derive from an analysis of the Complainant's claim in terms of the elements of a prima facie case with an inference of retaliation. Rather, the ALJ conducted his analysis as if a prima facie case had already been established. The Secretary held that the Complainant failed to establish the inference that his protected activities motivated the adverse action. Complainant's activities were committed in his capacity as a safety committee representative, and were encouraged and willingly complied with. The Secretary also held that even if a prima facie case had been established, the evidence supported Respondent's claim that Complainant was discharged for poor work performance. Hence, Complainant did not satisfy its ultimate burden of disproving the Respondent's proffered legitimate reason for the discharge. Ake v. Ulrich Chemical, Inc., 93-STA-41 (Sec'y Mar. 21, 1994). IV.A.2.c. Causation element not established where evidence supported legitimate reason for discharge The fact that Respondent encouraged truck drivers to voice their safety complaints and the finding that the Complainant was discharged due to his failure to maintain accurate logs was supported by substantial evidence. The court held that the Complainant had failed to establish the causation element of a prima facie case under the STAA. Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). [Editor's note: The court did not address the Secretary's finding that even had the Complainant established a prima facie case, the Respondent had a legitimate, non-discriminatory reason for firing the Complainant.] IV.A.2.c. Prima facie case; STAA Complainant failed to establish a prima facie case of discriminatory discharge where -- although he was subjected to adverse employment action and had engaged in protected activity in complaining to respondent about, for example, bad tires -- he was discharged almost immediately upon failing to dispatch on time. Respondent's president was incredulous that complainant had sat and waited two hours for a particular service station to open so that he could refuel his truck. After relaying the president's message that complainant was fired, complainant's foreman chided complainant for exercising poor judgment in delaying the run. The Secretary found that this evidence indicated that the protected activity was not a motivating factor in the discharge. Nance v. Polycrest, Inc., 90- STA-43 (Sec'y Aug. 5, 1992).
IV.A.2.c. Failure to establish causation Complainant failed to carry his burden of showing that respondent's adverse action (allegedly withholding work) was in retaliation for protected activity in violation of the STAA where uncontroverted evidence showed that a plant closing had reduced respondent's work by eighty percent and, later, that respondent had not received complainant's physical fitness report. Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992). IV.A.2.c. Causation not automatically established by transfer The fact that a complainant was transferred from over-the-road driving to log truck driving because of complaints about the over-the-road driving does not automatically establish that his later discharge was motivated by these complaints. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). In Moravec, there was no evidence that the complainant's log truck supervisor was responsible for the transfer, nor that he harbored any animosity against the complainant because of his earlier complaints.
[STAA Digest IV A 2 d]
In Baughman v. J.P. Donmoyer, Inc.,
ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007, and reissued with corrections on Oct. 31, 2007), the ARB affirmed the
ALJ’s holding that the Complainant did not prove by a preponderance of the
evidence that the officials who decided to terminate his employment knew about
his protected activity.
[STAA Digest IV A 2 d]
In Baughman v. J.P. Donmoyer, Inc.,
ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007), the ARB affirmed the
ALJ’s holding that the Complainant did not prove by a preponderance of the
evidence that the officials who decided to terminate his employment knew about
his protected activity.
[STAA Whistleblower Digest IV A 2 d]
Where the Complainant admitted that he did not provide any reason for declining a dispatch prior to his discharge, he failed to demonstrate that he made the Respondent aware of a protected complaint, and his STAA whistleblower complaint therefore failed as a matter of law. On appeal the Complainant argued that even if he did not make a protected complaint to the Respondent on the day of his termination, he had made hours of service and similar complaints in the past, and the ALJ should not have granted summary decision because that protected activity could have factored into the Respondent's decision to discharge him. The ARB declined to address this argument because it had not been raised below. Harris v. Allstates Freight Systems, ARB No. 05-146, ALJ No. 2004-STA-17 (ARB Dec. 29, 2005).
[STAA Digest IV A 2 d]
In Luckie v. United Parcel Service, Inc., ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. The promotion offer was allegedly adverse because it was ill-timed for the Complainant. The ARB noted that the Complainant must prove by a preponderance of the evidence that those responsible for the adverse action were aware of the alleged protected activity. The ARB found that the ALJ's finding of fact that the Complainant's supervisors were aware of the Complainant's alleged protected activity was supported by substantial evidence, but that the ALJ did not make findings of fact or conclude that the Respondent's corporate security executives at headquarters were aware of the alleged protected activity. It was these executives who made the decision to offer the Complainant a promotion.
[STAA Digest IV A 2 d]
In IV.A.2.d. Requirement that respondent be aware of protected activity In Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), the complainant alleged protected activity when he testified that he refused to drive a bus purportedly because making the assigned run would place in him in violation of the federal regulation governing driver's hours of service. 49 C.F.R. Part 395. Where, however, the ALJ made rational credibility determinations crediting the respondent's witnesses who testified that the complainant had sufficient hours to make the run, and that the complainant refused the run because he wanted to go elsewhere to take care of pressing personal business, the Secretary held that the complainant "did not establish by a preponderance of the evidence that he engaged in protected activity or that Respondent was aware of the protected activity. Complainant therefore did not make a prima facie case of discriminatory discharge."
[STAA Whistleblower Digest IV A 2 d]
The mere facts that Complainant notified the dispatcher that he was sick, without any further elaboration, and that he presented a vague note from his chiropractor upon his return to work which made no mention of any condition which made it unsafe for Complainant to drive are insufficient to show that Respondent had knowledge of Complainant's protected activity (refusal to drive because illness or fatigue made it unsafe for him to begin or continue to operate a commercial motor vehicle) and thus do not support a STAA whistleblower complaint. Wrobel v. Roadway Express, Inc., ARB No. 01 091, ALJ No. 2000 STA 48 (ARB July 31, 2003).
[STAA Digest IV A 2 d]
Where Complainant did not establish by a preponderance of the evidence that Respondent was aware of his complaints to the DOT about hours of service violations at the time Respondent sued him in small claims court for unauthorized use of a vehicle, the ARB dismissed Complainant's STAA complaint. Respondent had presented evidence that other employees had been charged for unauthorized use of a company vehicle, and OSHA had found that another employee had been sued to collect such a charge. Anderson v. Eagle Carriers, Ltd., 1997-STA-33 (ARB Apr. 16, 1999).
[STAA Digest IV A 2 d]
In BSP Trans, Inc. v. USDOL, 1998 WL 754697 (1st Cir. Nov. 3, 1998)(case below 1995-STA-29), the First Circuit recognized that "the STAA protects some acts of evidence-gathering to be used to support a protected complaint...." The court, however, indicated that the ARB erred in finding that the mere copying of time cards and manifests by Complainant was protected activity under the STAA because the ALJ had made a conclusive factual finding that Complainant never actually complained to his supervisors about DOT hours of service violations. Thus, Complainant's supervisors would have had little reason to think that Complainant's copying of time cards and manifests was an attempt to document violations. Rather, the testimony indicated that the supervisors thought Complainant was copying information that was potentially valuable to competitors. The court held that "in the absence of [Complainant's] actual complaint to management, he cannot invoke the protections of the STAA based merely on his copying of company papers for the undisclosed purpose of documenting the company's perceived regulatory violations."
[STAA Digest IV A 2 d]
In Clean Harbors Environmental Services, Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the court stated that it recognized Respondent's
1998 WL 293060 * 10. In the instant case, however, the record established that Complainant's "superiors were well-aware of his fastidious compliance with safety regulations and his oral and written refusals to accommodate this practice for the sake of customer satisfaction." Id.
[STAA Digest IV A 2 d]
Where Complainant was fired for photocopying both his own and other drivers' time cards and his own manifest, but several of Respondent's employees knew that Complainant had raised the issue of drivers being forced to speed or violate the hours of service regulation, and Complainant would have no reason to copy other driver's time cards other than to document hours of service violations, the Board concluded that Respondent suspected at the time of the firing that Complainant was about to file a complaint to a government entity such as the DOT. Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997).
PROTECTED ACTIVITY; VAGUE OR TENUOUS STATEMENTS From White v. Maverick Transportation, Inc., 94-STA-11 (Sec'y Feb. 21, 1996):
Slip op. at 5-6 (citations omitted). IV A 2 d Respondent's knowledge; small shop doctrine In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the ALJ noted that the fact that the Respondent was a small, informally managed family enterprise may be sufficient evidence by itself to warrant a finding that the Complainant's protected activities were made known to the official who actually informed the complainant that he was being fired. See D & D Distribution Co. v. NLRB, 801 F.2d 636, 641 (discussing the "small shop doctrine"); Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989). IV.A.2.d. Emphasis should be placed on knowledge of Complainant's protected activity on the part of party with authority to hire and fire In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a truck back to Respondent's truck yard after it had been placed out of service for safety violations. Respondents picked up Complainant and took him back to the truck yard. There, Complainant requested another driving assignment but was told by Respondent's dispatcher to wait for a while. After a half hour (during which Respondent's dispatcher criticized Complainant for Complainant's prior mechanical breakdowns) Complainant requested that Respondent's dispatcher either work him or fire him. At that time Respondent's dispatcher fired Complainant. Subsequently, Complainant's discharge was ratified by Respondent, who had the authority to discharge Complainant while the dispatcher did not. The Secretary held that the ALJ erred by focusing on the perceived lack of evidence that the dispatcher knew about Complainant's protected activity. The relevant inquiry centers on Respondent's ratification of the dispatcher's discharge of Complainant since only Respondent was empowered to discharge Complainant and the dispatcher's pronouncement that Complainant was fired had no effect. IV.A.2.d. Suspicion that employee made protected complaints sufficient to establish knowledge A manager's suspicion that an employee has made protected complaints is sufficient to establish the knowledge element of a prima facie case. See Williams v. TIW Fabrication Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992) (analogous SWDA case). Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993) (manager that fired Complainant testified that he was aware that Complainant had been assigned to a truck that had problems and Secretary found it likely that the manager suspected Complainant's complaints had caused the truck to be placed in the shop for repairs). IV A 2 d Respondent's knowledge of protected activity alone does not establish causation element of prima facie case A respondent's mere knowledge of the complainant's protected activity does not satisfy the causal element in a prima facie showing; a complainant is required to present some additional evidence, either circumstantial or direct, beyond the respondent's mere knowledge of the complainant's protected activity, that raises an inference that the protected activity was the likely reason for the adverse action. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995) (ALJ had cited cases that indicate only that temporal proximity may be sufficient). IV.A.2.d. Awareness of protected activity In an STAA whistleblower proceeding, in order to establish a prima facie case a complainant must establish that the Respondent was aware of the protected activity when the adverse employment action was taken. In Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr. 26, 1991), a dispatcher was not aware when she offered two runs to the Complainant that he was approaching his maximum hours or that she had a responsibility to enforce the hours regulation. Thus, actions barring the complainant from a certain terminal, a later refusal to rescind the bar, and a termination of the Complainant's lease to drive were not taken in retaliation for the protected conduct -- refusal to drive when to do so would violate a federal regulation. IV.A.2.d. Respondent not aware of protected activity at time of discharge
Homen v. Nationwide Trucking, Inc., The Secretary approved the ALJ's recommended decision to dismiss the complaint based on Complainant's failure to establish a prima facie case. To establish a prima facie case under the employee protection provision of the STAA. (49 U.S.C. app. § 2305), the complainant must show that he engaged in protected activity, that he was subject to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. The complainant was found to have engaged in the protected activity only after he was fired for insubordination and thus the Respondent was not aware of any protected activities engaged in by the complainant when they discharged him. Even assuming that the complainant established a prima facie case, the Respondents demonstrated a legitimate reason for discharging him, which successfully rebuts the inference that the adverse action was motivated by the protected activity. The evidence showed that after the complainant refused to drive the truck for safety reasons, the Respondent assigned him to alternative, non-driving duties only; the Complainant refused the assignment and became disruptive and uncooperative. Hence, the complainant's insubordination was a legitimate reason for his discharge. IV.A.2.d. "Small Shop Doctrine" In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary noted, but did not apply, the "small shop doctrine." This doctrine enables the NLRB to "infer employer knowledge of union or pre-union activities where the number of employees in the work place is small." D&D Distribution Co. v. NLRB, 801 F.2d 636 (3rd Cir. 1986). In the context of STAA cases, this doctrine would allow the Secretary to infer that the person who carried out the discharge of a complainant was aware of the complainant's protected activity in cases where a respondent's business is small. IV.A.2.d. Knowledge of protected activity; state OSH investigation does not prove awareness In Roach v. Felts Enterprises, 93-STA-12 (ALJ Mar. 31, 1993), aff'd (Sec'y June 17, 1993), the ALJ found that the Complainant failed to establish a prima facie case where the evidence indicated that the Respondent had no knowledge of the protected activity at the time it took adverse action against the Complainant. Although the Respondent had been subject to an inspection by the state's Division of Occupational Safety and Health shortly after the Complainant filed an allegation of safety violations, the ALJ noted that the state agency maintained confidentiality, and found credible the testimony of the Respondent's general manager and its controller that government inspections were not unusual and they were not aware that the inspection had been prompted by the Complainant's allegation. IV.A.2.d. Causation element not established where person taking adverse action had no knowledge of protected activity Where complaints about shop safety were raised in a shop meeting by the mechanics as a group, the complainant was not instrumental in raising the complaint, and the person who discharged complainant did not know that complainant had complained internally or that he had filed a complaint with OSHA, complainant failed to establish the causation element of a prima facie case under the STAA. Gay v. Burlington Motor Carriers, 92-STA-5 (Sec'y May 20, 1992). IV.A.2.d. Communication requirement STAA; Existence of legitimate, nondiscriminatory reason for adverse action Complainant did not establish a causal link between his protected activity and his subsequent discharge where the record did not prove that the supervisor who discharged him had any knowledge of the protected activity or, otherwise, that the decision to discharge complainant was motivated in any part by complainant's protected conduct. Instead, the record proved that complainant was discharged for a legitimate, nondiscriminatory reason -- for refusing to attend a counseling session pertaining to his consistent problem of driving over Respondent's established speed limit. Although the complainant contended that the speeding resulted from the way he was dispatched, the Secretary concluded that the record did not support that contention; she also noted that the relevant inquiry is Respondent's perception of its justification for the discharge. Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987). Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992). IV.A.3. Error to consider respondent's reasons for discharge at prima facie phase In considering whether the complainant established the elements of a prima facie case, it is error to consider the respondent's reasons for firing the complainant. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992). IV.A.3. Proximity of protected conduct and adverse action The ALJ erred in considering respondent's reason for discharging the complainant in determining whether the complainant had established a prima facie case. An employer's legitimate reason for the adverse action "goes not to the prima facie case of causation but to the ultimate question of whether respondent retaliated against complainants because they engaged in a protected activity." Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Sept. 15, 1989), slip op. at 17-18, aff'd sub nom., Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir. 1991). Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992). IV.A.3. Prima facie case - STAA; improper to consider Respondent's reasons for adverse action at this stage of analysis When considering whether complainant established the elements of a prima facie case in a STAA case, it is improper to consider Respondent's reasons for laying off complainant. To do so combines the analysis of the complainant's initial burden with the complainant's ultimate burden to establish that Respondent's proffered reason for the adverse action is a pretext for retaliation. See Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), appeal docketed, No. 92-70102 (9th Cir. Feb. 18, 1992). Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992).
To the same effect, see Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992) (ALJ improperly considered Respondent's reasons for not assigning complainant any runs after a certain date in determining whether a prima facie case had been established). In Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), Complainant overheard another driver and Respondent's president talking about mechanical problems with a truck. Later that day he was assigned to that truck, and after driving it a short distance became concerned about its safety. He later spoke to the president about his safety concern with the truck. Several weeks later Complainant was asked to drive another truck about which he was also aware of safety problems (and also knew that his stepson was going to have inspected by the state later that day). Complainant did not make any statement to the president about problems with the truck but simply told him he had other things to do. Complainant never got another driving assignment from Respondent. The Secretary held that by refusing a driving assignment, Complainant committed an act tantamount to resignation. Having never been directly involved in the history of the second truck, and never having sought to have it repaired, neither a constructive discharge nor a violation of section 2305(b) was present. The Secretary found illogical the ALJ's conclusion that Complainant's discharge was derivative of another Complainant. [Editor's note: The facts of the case are not perfectly clear, but it appears that this Complainant was involved in a plan to assist another Complainant (his son-in-law) in having the truck inspected by a state inspector, which explains why he did not tell Respondent's president why he was refusing the assignment. Complainant waited at the rest stop where the inspection had been arranged so that he could give his son-in-law a ride home after the inspection. Complainant's son-in-law's complaint was found meritorious by the Secretary based on constructive discharge. It doesn't seem to me that the ALJ was being illogical, although there may not technically have been the elements of an STAA complaint directly performed by this Complainant.]
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